Law suits and same-sex marriage

It has been announced that Jeremy Pemberton, the first clergyman in the Church of England to enter a same-sex marriage, is taking legal action against his bishop and the Archbishop of York.

Canon Jeremy Pemberton, the first British clergyman to enter a same sex marriage, has confirmed that he has filed an Equality Act claim in the Employment Tribunal against the Archbishop of York and the acting Bishop of Southwell and Nottingham. The action is being brought because of the sanctions imposed upon him as a result of his marriage. Canon Pemberton married his long term partner Laurence Cunnington in April of this year. Shortly thereafter his permission to officiate was revoked and a licence for chaplaincy work was refused. This led to the withdrawal of a job offer from Sherwood Forest Hospitals NHS Foundation Trust.

Jeremy’s situation is unusual and complex. He resides in Southwell in the Diocese of Southwell and Nottingham, but up until now has been working as an NHS chaplain in a hospital which is situated across the border in the Diocese of Lincoln. He had Permission to Officiate (‘PTO’, something with no legal status which is in the gift of the bishop) in Southwell and Nottingham, and he also had the Bishop’s Licence in Lincoln. When he married, he was (it seems) given an informal rebuke by the Bishop of Lincoln, who reminded him of the Church’s current teaching, though his license was not removed, not least because this would have required at the very least a Clergy Discipline process. But the acting Bishop of Southwell and Nottingham, Richard Inwood, removed his PTO after an interview; since PTO is in the gift of the bishop, removing it requires no formal process.

He was then interviewed and appointed as Senior Chaplain at an NHS hospital within Southwell and Nottingham. It has been a convention that chaplains are appointed only if they have the goodwill of the diocese in which the hospital is located—though (crucially in this case) the diocese is not involved in the actual appointment process. In the case of Anglican chaplains, this ‘goodwill’ is interpreted as the willingness of the diocese bishop to grant a licence—which Richard Inwood refused to do. The job offer was subsequently withdrawn.

But what is odd in this case is that employment has been refused by a potential employer (note that the Church is not an ‘employer’ of clergy in ministry posts, since they are ‘office holders’ and not ‘employees’) on grounds which are quite separate from the process of appointment or employment. If Jeremy wants to pursue a case in an employment tribunal, then he would surely have to pursue it against the NHS Trust, and not against the bishops.

Discussion on the Thinking Anglicans thread appears to confirm this. One commentator observes:

It will be interesting to see what the NHS Trust in question does. It might ask to have itself joined to the case, and in any event they’re going to get dragged in. The Bishops’ defence will be, I suspect, “we aren’t stopping him from working for the NHS Trust in question, it’s their decision to demand the accreditations we offer, and we are entitled to determine who works for us (which he hasn’t applied to do) because of our exemption from discrimination legislation”. Legally (as opposed to morally, decently, etc) that argument looks reasonably sensible.

Another puts it like this:

This is the kind of reply he will probably get in my opinion – it’s in 2 parts.

Part One
There is and was no employer-employee relationship.
The ET has no jurisdiction.
The claim is vexatious.

Part Two
Even if an employer-employee relationship existed:

a) it would have been with the NHS Trust

b) the C of E is exempt from the Equality Act 2010

though a response is offered to this:

The Equality Act exemption relating to religious organisations allows them to discriminate on the grounds of religion, belief or sexual orientation ‘in certain circumstances’.

In my view, because the CofE had not formulated its grounds for revoking JP’s licence (I understand the matter is under some sort of extended discussion period?)It just might not get away with it.

In fact, of course, there has been fairly clear process. The Bishops have expressed the teaching of the Church clearly, recently and remarkably consistently. I imagine the interviews with the Bishops of Lincoln and Southwell and Nottingham with Jeremy must have gone something like this:

Bishop: Do you understand the teaching position of the Church?

JP: Yes, though I think it is wrong.

Bishop: Are you willing to comply with it?

JP: No

And so whilst one bishop might not wish to instigate difficult and costly proceedings to remove a licence, these are perfectly good grounds, procedurally and theologically, to refuse to grant a licence. It is really difficult to see how a Tribunal can overturn this, given equality exemption, even if it thinks it does have jurisdiction, and even if it thinks the actual position of the Church is wrong. If the Tribunal were to overturn it, this would signal the end of exemption for the Church of England, and by implication for all religious groups. Is that really plausible?

The most logical outcome of the whole process would be for a case to be brought against the Trust, who would then detach the work of its own chaplains from the ministry of the diocese within which it sits, and who could then employ Jeremy without a licence—should it want to employ someone who has just taken it to Tribunal.

None of this is rocket science, and I am sure Jeremy (and his advisers) have worked it all out. What, then, is the point of making the claim? The answer perhaps comes in the Press Release from Changing Attitude from the day before which specifically mentions Jeremy’s situation. The statement concludes:

You need to respond to the anger and frustration being felt by LGBTI laity and clergy. The temperature is rising and people are calling for urgent action. We are not prepared to wait for the conclusion of the mutual conversations for the changes which have already occurred to be approved by the House of Bishops.

The key phrase here is ‘we are not prepared to wait’; nothing is more important than changing the Church’s teaching on this question—not the reputation of the Church, not relationship with bishops, not any consideration of those who hold a different view, not the Pilling process of facilitated conversations. There are no grounds for conversation or negotiation.

Jeremy must have known in April that the new post was coming up. He was also well aware of the challenge to the bishops of his living in one diocese (whose bishop was likely unwilling to take disciplinary action) and working in another (whose bishop was more likely to). In the timing of his marriage, it is quite hard to see Jeremy as the hapless victim rather than as a well-planned campaigner.

Those clergy who marry someone of the same sex believe they should live in accordance with canon C26 and that they are doing so and that their problem is simply with canon B30. However, the general category of “according to the doctrine of Christ” in C26 has within the canons one very clear specification – the definition of marriage in B30. This is the canon that, in a form of conscientious ecclesial disobedience, they are not only questioning and asking the church to reconsider but actively contradicting by their actions…can the clergy concerned (and those supportive of them) therefore recognise that any bishop would be totally justified, perhaps even have a moral responsibility, to take action against them when they enter a same-sex marriage?

But this whole approach to changing the Church suggests something more insidious about attitudes to leadership. David Runcorn commented with exasperation on another thread (about bishops’ education):

There is wearying predictability about the way any topics involving bishops on this ‘thinking’ website turn into a kicking contest. Leadership? – useless. Theology? – inept. Education? – not a good enough degree/doctorate (and if they have a doctorate – like Carey? – OK but he needs kicking for other reasons).

Is the assumption here that if we only sacked this lot of bishops and dismantled the management obsessed processes in place to appoint them, there is a whole raft of holy, doctorate/degree laden, super gifted, politically and internationally astute, media savvy, ethically agile and progressive thinking, men and women church leaders just waiting to be plucked out of the watching crowd – and all shall be well? If not what are we hoping for by these muggings?

He then goes on to cites Libby Purvis’ analysis of the challenge of leadership in our media age:

time to time it befits us to throw a small cautious, grudging kind thought upwards … remember, they too are powerless against the great tide of history. And unlike us, they have to take the blame. In an age of mass communication power falls ever more to the grumblers, onlookers, comedians, parodists, gossips, blog bullies, unelected commentators and sneering interrogators. But some of us should admit, from time to time, that we’d much rather throw old boots at the bosses than walk a mile in theirs.

Richard Moy, in his new blog, makes astute observations about the challenges of leadership where there is little in common between leaders and led:

The ability of a leader to divert thinking will depend massively in my experience, on factors such as the strength of denominational/local church teaching identity; personalities of the leader and congregation (corporate and individual); and the degree to which other voices are also speaking into that issue. So in the classic example of human sexuality an individual congregation leader who might ordinarily carry a high level of theological influence with their flock, might find the ‘uphill’ struggle of restating ‘biblical orthodoxy’ a Sisyphusian impossibility.

In other words, the less there is a shared set of wider values, the harder it is to find any consensus on this issue.

Perhaps the one good thing coming out of the dispute about same-sex marriage is the challenge to the Church of England: what, in fact, is the shared theological basis of our life together? The Church has been happy to duck this question, since answering it will have some painful consequences. But we are now at the stage when not answering it will be even more painful.

110 thoughts on “Law suits and same-sex marriage”

I agree with many things you say but the question of leadership and authority are at the heart of this matter, we are as clergy sworn to obey our Bishops and come under there auhtority and if we disobey then they have the right and it is there right to bring us under there authority in this case it seems a straightforwrd disobeying of Canon Law which now looks like being well orchestrated to bring maximum publicity to the church for all the wrong reasons.

Taking to an industrial tribuanil has legal implications for the church if it was ruled against the church and would affect every faith based institution in this country and that would affect the right to believe and practice our religion regardless of what we beleive and that is an attack on our freedom.

This is more like a planned way of making the church accept same sex marriage regardless of the cost to the church and it’s followers and that in itself is wrong.

Bob, thanks, I think you are right. If this case is upheld, the whole ‘quadruple lock’ unravels, and we move into a very different era in terms of freedom of expression. So it will be very interesting to see what happens—and in fact whether the outcome is reported and how.

The issue here is one of process. Jeremy Pemberton is being refused a licence on the basis that his marriage was not ‘appropriate conduct’. However, he is not being given an opportunity to challenge this – this seems to be an injustice. If someone is to be accused of inappropriate conduct, shouldn’t this take place through the disciplinary measures of the Church of England? Additionally, the Church of England is acting inconsistently in that he continues to hold a licence within another diocese.

They are absolutely legal arguments, Jonathan: there’s been zero due process here, both in crafting vague “discipline” on the fly, and in denying a license by episcopal fiat. Any rules worth the name must be clear, lawfully passed, and give a person subject to them due process. In short, the bishops may well have overstepped their authority.

In congregational government, evangelicalism has a long and proud tradition of opposing unaccountable church power. As I asked over at Thinking Anglicans, Ian, can you not support Jeremy Pemberton on due process grounds? Your doing so (which would require no change in your opinion of sexual morality) would be a powerful signal to the bishops that they’re acting wrongly.

If the church is to get through this, we need thoughtful moderates like yourself onboard. Please, consider it.

There HAS been due process. The condition in Southwell was that a PTO was withdrawn. This can be challenged by Pemberton (you asked for due process) by laying a complaint against +Inwood that he has withdrawn the PTO for an incorrect reason. The laying of a complaint under the CDM was due process.

Second, +Inwood refused to grant a licence. The **due process** in the Church of England if Pemberton doesn’t like this is to lay a complaint against +Inwood under the CDM.

In both cases it is Pemberton, not +Inwood, who has refused to undertake due process, possibly because he knows he couldn’t win either complaint.

The *initial act* was taken without due process: the availability of due process to challenge it doesn’t undo that action. To give an analogy, if an LEO arrests someone without reasonable cause, sure, they can sue when they’re released, but that doesn’t make the arrest legal, it just offers compensation.

As for why the CDM wasn’t invoked, I don’t know. That an external party (the NHS Trust) is involved may well be the reason, but you’d have to ask the legal team.

Beyond that, I’d repeat what I said to Ian: you’re another moderate who could lend this support without compromising your position on sexual morality. That’s the kind of signal LGBT people need to see if they’re to have any future in the church (and, indeed, if the church is to have any future in society).

James, I’m confused as to why the initial act was taken without due process. Are you suggesting that a PTO cannot be withdrawn *unless* a complaint under the CDM has already been upheld? If you want canon law changed in this way it would have far reaching consequences way beyond this case.

The situation is murky at present — Canon C8 merely says that permission is required, but is silent on the grounds for refusing it — presumably ’cause bishops don’t generally abuse their discretion.

If the bishops can truly act on a whim (“You didn’t pass the port, Father, so no PTO for you!”), in addition to being tyrannical in a strict sense, it’d raise all kinds of issues in employment law, which the church’s exemptions may well fail to cover. Employment in England is not “at will,” after all.

As evangelicals are often, well, assertive with their bishops, you’d surely want clarity in this area as much as anyone!

Obviously that was the cause, Peter, but was it reasonable? Given that the “pastoral guidance” (talk about a misnomer!) was produced on the fly, without any synodical discussion or approval, and merely “urges” clergy to obey, that’s very much open to question.

Jonathan, I am not sure you are right here. The bishops have recently stated that clergy may not enter a same-sex marriage. After this, Jeremy entered a same sex marriage. The bishops have made very clear, and explained why they believe this is not ‘appropriate conduct’. Presumably Jeremy is not disputing that he is in a same sex marriage?

So there is simply no case to answer here on this issue. It would be a complete farce to go through a discipline process to establish whether or not he was married!

Besides, the issue in moving from one diocese is quite different from one’s situation when remaining in a diocese. To remove a licence, yes, there would need to be a process. But, since there is a note on his file from Lincoln, stating that he is in breach of current church discipline (which, again, no-one disputes), it is perfectly good process for the new bishop not to grant a licence.

This could, of course, be appealed, but the process would be ‘Are you in a same-sex marriage?’, ‘Yes’, ‘Then you cannot have a licence.’

The bishops issued guidance, not commands. The guidance issued equated same-sex marriage with inappropriate conduct, but this is precisely the point under dispute. Process isn’t needed to determine whether Jeremy married – it’s needed to determine whether or not this is inappropriate conduct.

To add to your imagined conversation:
‘Are you in a same-sex marriage?’
‘Yes’
‘Then you cannot have a licence.’
‘Why not?’
‘Because same-sex marriage is inappropriate conduct.’
‘No it’s not. And if you think it is, why didn’t you use the Clergy Discipline Measure?’
etc.

But the question is not ‘Is same-sex marriage inappropriate conduct’ but ‘Does the House of Bishops think it is inappropriate conduct?’ If their statements can be taken as expressing the view of the House (and the ET cannot really take any other view) then it is pretty clear. The statement said:

27. The House is not, therefore, willing for those who are in a same sex marriage to be ordained to any of the three orders of ministry. In addition it considers that it would not be appropriate conduct for someone in holy orders to enter into a same sex marriage, given the need for clergy to model the Church’s teaching in their lives.

which was pretty emphatic. If you suggest the bishops only ever issue guidance, and nothing more, then you are arguing for a church with no discipline, and therefore, as a whole, no teaching position on anything. I’m not sure that’s the kind of church I want to be a part of…?

In your conversation about, the next answer is: ‘Because you are not yet licensed in my diocese’. If there is lack of clarity about appropriate conduct, I would imagine turning to canons B30 and C 26 would clarify that. The next statement is then ‘Since you are clearly unwilling to live with canon law, and cannot claim to take the oath of canonical obedience with integrity, I am not granting you a license.’

Ian, to borrow Thomas More’s famous challenge to the authority of Parliament, is the House of Bishops competent to declare that God is not God? If not, then its pronouncements can be judged on their merits, not their source.

Anglican bishops don’t need to be treated like the Magisterium for the Church of England to have discipline. It has canon laws, passed by General Synod, enforced by ecclesiastical courts.

If the bishops believe that Jeremy Pemberton has violated canon law, then that is the route they should have traveled, either by laying a complaint under the CDM, or by convening an assize court under the EJM.

I am not sure you understand the independence of dioceses. The ‘bishops’ don’t act as a body. Inwood could not take JP through discipline because he did not have a license. See Peter Ould’s comment on the four different issues.

“Taking to an industrial tribuanil has legal implications for the church if it was ruled against the church and would affect every faith based institution in this country ”

Employment Tribunals are not even courts, never mind courts of record, and do not set precedents. You cannot use the decision in one tribunal as part of an argument in other, still less in an actual court. If A takes B to an employment tribunal and wins, A has won a case against B. That’s it. A similar case involving A’ and B’ would have to go to a tribunal and be argued again, and might come to a different answer.

That, by the way, is why employers who lose ETs are very, very reluctant to take it to appeal at an Employment Appeal Tribunal, and even if they fancy it, their trade body (or whatever) will advise them not to. EATs _are_ courts of record, and _do_ set precedent, so losing in an EAT is a much more serious issue.

Jonathan’s point is the legal issue. There was no process, indeed the whole licensing thing was done by post with no personal meeting. Defending the lawfulness of what has happened will involve a tribunal accepting SSM is sufficiently a matter of faith in the Church of England to refuse work to a Same Sex married clergy person in one county, but not in the one next door where the same person in the same marriage exercises precisely the ministry that he was denied by the Archbishop. The key issue for a tribunal is that there was no due process.

Then there is a confusion between discipline and doctrine. You can ay this is a CDM’able matter (common immorality etc.) but by saying that you are also saying it is not a matter of doctrine. If it isn’t a matter of doctrine, you have reached vanishing point. But it must be a matter of doctrine because the bishops said it was, formally, again and again in parliament and elsewhere during the consultations that led to the change in the law. Furthermore all clergy in same-sex marriages are, of course, subject to the CDM. If a bishop sincerely believes a serious infringement of the CDM has been committed it would normally be their duty to pursue it and instruct an archdeacon to be complainant if nobody else were willing to be.

To incite members of the public to complain then block the complaints on technicalities seems like a wind-up all round and offends proofundly against natural justice. All case law on clergy and employment since the 1980’s has been very hot on that aspect of clergy “employment”. Finally any attempt to enforce the 1866 / 1938 “definition of marriage” based on Lord Penzance’s obiter dictum in Hyde v Hyde on anyone in law, comes up against the difficulties raised by Rebecca Probert about whether it can be a definition at all. So this is a right old mess. Practically speaking, the effect of all this will probably be to further disestabish hospital chaplaincy, if such a thing were possible.

If Ian and Peter felt able to contact Jeremy Pemberton and offer him their public support *purely on due process grounds*, it would go a long way to undoing the damage this is doing to the church’s reputation.

The nature of the complaint makes this a unique opportunity for people from across the theological spectrum to unite, not in cause of changing church teaching, but for the sake of fairness. Such a coalition might even be the start of the reconciliation process the church is crying out for.

I understand that this is counter-intuitive in the extreme, but please, give it serious thought.

I am not going to offer support to anyone who has, in order simply to generate publicity for his own cause, decided to drive a horse and cart through anything he does not like without regard for the consequences. He does not have a process leg to stand on.

Could you perhaps make your mind up as to whether this is a futile and vexatious case, in which case it is not going to drive a cart through anything as it will be rejected at the first instance, or is a serious and plausible action which will shake the very foundations of the church once it reaches and triumphs in the Supreme Court? Because it’s a trifle hard to see how it can be both.

Jeremy must have known in April that the new post was coming up. He was also well aware of the challenge to the bishops of his living in one diocese (whose bishop was likely unwilling to take disciplinary action) and working in another (whose bishop was more likely to). In the timing of his marriage, it is quite hard to see Jeremy as the hapless victim rather than as a well-planned campaigner.

Equally, Richard Enraght’s gaoling was of his own making, as he chose to administer what his Victorian contemporaries denounced as “papist” sacraments. If a rule’s unjust, deliberate violation does nothing to mitigate its unjustness.

You, of course, feel conscience-bound to support traditional teaching, which I’ve not sought to challenge. What I’ve challenged is the way the marriage ban was formed and enforced, with bishops producing rule and sanction on the fly, without synodical debate or approval. Its arbitrary power, not the rule of law.

As mentioned, there are many reasons why Jeremy Pemberton may have chosen not to proceed through the ecclesiastical courts. That doesn’t necessarily undermine his claim.

Just a thought on why the employment tribunal might have been chosen as the legal avenue.

If Jeremy did lay a complaint against Bishop Inwood under CDM, the bishop could quite properly respond that everything he did was according to the processes of the Church of England. (Peter has explained clearly how consistently each diocese has acted). The issue here is whether those processes themselves are unfair. I am not sure whether CDM has the remit to judge these. An employment tribunal presumably would.

If this is the case (disclaimer – nil legal knowledge), then there would be no possible remedy under CDM (were processes followed – yes – case dismissed), but there would under the ET.

Whether or not it is a matter of doctrine is way beyond the jurisdiction of an employment tribunal.

The question is simply this: was Inwood justified in refusing a licence, and by what process? The answer is: JP is in breach of canon law, and this is not disputed by anyone. In that case, Inwood is quite right to refuse a licence. If JP does not like this, he could appeal.

Yes, the result will be to detach chaplaincy from dioceses. Does JP want that to happen?

If the issue is a breach of canon law, the Employment Tribunal might then want to know which canon law, and whether other people who breach canon law are treated in the same way. Are divorced clergy refused licences? Are clergy who don’t use robes refused licences? A simple reference to canon law might not be seen as good enough. How do you know if it’s a serious breach if you haven’t taken it through the CDM? If it’s a serious breach, why was the licence in Lincoln not removed? The question may be simple; the answer isn’t.

You say Jeremy Pemberton could appeal the refusal of the licence. Genuine question – is there any process to do this? My understanding is that there isn’t.

Canon B30, which defines marriage as a lifelong union between a man and a woman, is presumably the one being referred to, but it’s not at all clear-cut.

Canon B30 is a definition: it doesn’t define a penalty for contracting a same-sex marriage (since, of course, equal marriage wasn’t on the table when it was written). As you rightly say, it’s already been departed from in the remarriage of divorced people. Any tribunal will want to see consistency.

If it *has* been violated, there are ecclesiastical courts to rule on the issue. The bishops saw fit to ignore them and act like feudal barons. For those who say that Jeremy Pemberton should’ve taken an action under the CDM, why is there an onus on him, but not on the bishops, to go before church courts?

If the CofE’s lawyers were to argue that canon B30 (“lifelong union”) has to be obeyed by serving clergy, it’s going to have an torrid time defending the argument that it’s applied consistently. Nick Holtam would be well advised to phone the lawyers up and suggest that’s an argument they don’t want to make.

“refuse work to a Same Sex married clergy person in one county, but not in the one next door where the same person in the same marriage exercises precisely the ministry that he was denied by the Archbishop”

No, the issue is around the removing and granting of PTOs and licences. Indeed, there are four issues:

i) The removal of a PTO
ii) The granting of a PTO
iii) The removal of a licence
iv) The granting of a licence

The county in which these take place is irrelevant, for each diocese is independent of the other in this regard. All that needs to be demonstrated by the CofE is consistency WITHIN A SINGLE DIOCESE within (***NOT ACROSS***) points (i) to (iv) independently, for they are separate issues. Trying to roll them all up into one is what is confusing the issue for you, and frankly you as a Bishop should know the difference between the legalities of a PTO and a licence for starters.

So what happens if the judges rule for Jeremy Pemberton? Will the bishop be forced to give him his PTO and the Trust honor his job offer? Or will it just be a moral victory?

I wouldn’t be disappointed if it was just a moral win (although obviously my priorities are different from Jeremy Pemberton’s). To see the Church punished in however small a way for centuries of vicious and unrelenting homophobic persecution would send a very important signal to society as a whole: nobody is above the law, not even those who claim to be following divine will.

“The most logical outcome of the whole process would be for a case to be brought against the Trust, who would then detach the work of its own chaplains from the ministry of the diocese within which it sits, and who could then employ Jeremy without a licence.”

This could not now happen. Were the trust to do this, having advertised the post as requiring specific accreditation, To alter the criteria so to speak, to provide preference to a specific candidate would leave the trust open to legal challenge of unfair process from other shortlisted candidates or indeed from any potential applicant who may otherwise have applied, but did not because they could not provide the required accreditation.

Withdrawing a job advert and re-issuing it with different criteria is routine. It’s done to accommodate changes in legislation, changes in requirements, failure to form a short list from the previous advert and, bluntly, to accommodate selected candidates who for some reason don’t have the precise qualifications. There is no imaginable legal problem with doing this. “Legal challenge of unfair process” is meaningless: unless the process is manifestly discriminatory against protected characteristics, what action do you think could be brought?

Withdrawing advert and issuing different criteria following failure to short-list or appoint is routine and would have no legal ramifications. That is not the case here. An offer of employment was made and then withdrawn for reasons relating to a protected characteristic. In Reaney v. Chester the element of the claim that was successful was that the diocese sought to change the selection criteria after an offer of employment was made; the part of the claim that was unsuccessful was in relation to harassment on the basis of sexuality. If there were other applicants for the post who were unsuccessful, who could have provided the specific criteria now in question may wish to question the selection process IF they feel discriminated against. If PTO was a requirement of the post when first advertised, it presumably remains a requirement, otherwise the trust could have simply ignored the Bishops and given Jeremy the job.

The assumption that “the Church [of England] is not an ‘employer’ of clergy in ministry posts, since they are ‘office holders’ and not ‘employees’ ” is no longer unquestioned. Clergy on common tenure are certainly office-holders and they have a statutory right to recourse to an employment tribunal in certain circumstances “as if” they were employed. But it was always assumed that freehold incumbents were office-holders purely – until an Employment Appeal Tribunal decided in Sharpe v Worcester DBF that the Revd Mr Sharpe, a freehold incumbent, had employment rights.

I happen to think that the EAT got it wrong: the fact that Mr Sharpe was a freehold incumbent doesn’t appear to have been taken into account; and an appeal is currently awaiting a hearing in the Court of Appeal. It may be that the decision of the EAT will be overturned – but employment law is notoriously tricky and the appeal could go either way.

Neal,
the Trust may not be able to change the specifications of the particular job that had been offered to Jeremy. But in the future, there is nothing to stop the NHS from changing its criteria for chaplains. One option would be that refusal of a bishop’s license will not be taken into account where the refusal arises directly from the CoE’s opt out from the equalities legislation.
It’s certainly a point some of us are currently pursuing through government and the NHS.

What I find very interesting is that no-one in these comments, who supports SSM, is prepared to admit that this is a mischievous and vexatious claim, and that it is an appalling waste of time and money which will unnecessarily bring bad publicity to all concerned, and undermine any sense of respectful discussion.

I guess that means that folk do agree with CA that “‘we are not prepared to wait’; nothing is more important than changing the Church’s teaching on this question—not the reputation of the Church, not relationship with bishops, not any consideration of those who hold a different view, not the Pilling process of facilitated conversations. There are no grounds for conversation or negotiation.”

Having had another night’s sleep to think about this, I think I am very clear that the intent of taking the ABY to court is NOT to win (I don’t think they will – Schedule 23 of the EA 2010 defends the ABY’s position), but rather to bring Schedule 23 into the forefront of the debate. Losing the case because of Schedule 23 then gives an opportunity to challenge Schedule 23 in the Supreme Court.

One more thing – I don’t think the House of Bishops will accept lightly allowing their pastoral disciplinary processes based around sexual ethics to be decided by legislation and judicial action. Think about it for a moment – if you can’t be disciplined for entering a same-sex marriage (which is perfectly legal state to enter into), why should you be able to be disciplined for committing adultery (which is a perfectly legal thing to do)?

“Losing the case because of Schedule 23 then gives an opportunity to challenge Schedule 23 in the Supreme Court.”

What would be the point of doing that? The Supreme Court cannot challenge primary legislation. This is not the USA. You cannot challenge primary legislation via legal action. You can challenge its interpretation and implementation, but the drafting of Schedule 23 is absolutely watertight.

Even if Pemberton wanted a “declaration of incompatibility” under the Human Rights Act, I don’t see why he’d waste time and money losing an employment tribunal first. He’d surely go straight for a judicial review.

Given that Strasbourg has repeatedly ruled that the ECHR creates no right to same-sex marriage, and has repeatedly upheld religious exemptions, at most, a case would only narrow the church’s exemption, and compel it to beef up its due process.

The only credible answer is that he’s been advised that he stands a realistic chance of winning his employment case.

Unfortunately, James, too many people inside the church have been taken in by the CLC’s bitter fantasies about evil courts oppressing churches. The ECtHR have been scrupulous in protecting churches from that sort of action, and given the margin of appreciation on such matters is also wide the chances of any action about same-sex marriage being upheld by the ECtHR are zero. The UK Supreme Court takes its lead form the ECtHR. Again, this isn’t the USA. So even getting such a declaration is almost unimaginable.

And as you allude, even if by some amazing chance the ECtHR did rule against the UK primary legislation in this case, the UK government could just tell them to get stuffed. The ECtHR has repeatedly ruled against the UK on the matter of prisoner voting. So what? In the current Eurosceptic mood in parliament, even though the MPs voted (broadly) against the church over same sex marriage, they would not be similarly sanguine about the ECtHR ordering them about.

Interestingly, Strasbourg avoided a constitutional battle by putting the prisoner voting case on ice by refusing to award compensation, the usual means by which the Court coerces signatories to the treaty. The U.S. Supreme Court did similar by declining to apply the exclusionary rule to illegal searches of parolees, illustrating that it’s less about legal theory than realpolitik: people have limited concern for convicted criminals.

I doubt that a signatory to the ECHR would get away with flouting the court’s wishes on more popular issues like gay rights, but it’s for that reason that Strasbourg treads carefully. Like you say, the margin of appreciation stretches very widely indeed.

Scaremongering around church issues has reached an absurd pitch, I agree. It both draws fire from, and fuels, the persecution complex that far too many conservatives seem to have developed. It’s misplaced. The greater threat comes not from some court or other striking down the church’s equality law exemptions, but from its spiraling attendance, to which the toxic publicity from cases like this can only contribute.

I think describing the litigation as vexatious is going too far, and seems unfounded to me. Are you convinced that there is absolutely no legal merit in the case and it will almost certainly be lost by Canon Pemberton? I think that unless you had seen all the facts presented in his brief and were an expert on all the legal issues it would be impossible to conclude as such.

If the claim is indeed vexatious then action can, and will, be taken against Canon Pemberton. But I rather suspect it won’t…because it’s not really vexatious. A complete pain in the proverbials for the church, yes; something they’d much rather not face, yes; something people would actually rather not talk about, yes; something very expensive for all involved, yes; something that will divert time and resources from other things, yes; something that will bring about bad publicity, yes; something that may undermine the church’s intended discussions and deliberations on this, yes. But none of those things make litigation vexatious…

A legal action is not vexatious, in any useful sense, if it is rejected on procedural grounds. If, indeed, an employment tribunal believes that an application fails to state a claim, or fails to state an claim within the ET’s remit, or names someone against either the tribunal or the applicant have no standing, then the ET1 form will be rejected out of hand, and that will be the end of the matter so far as the ET are concerned (I suspect it would be for an EAT to sort the mess out if the applicant were to press their case).

It isn’t vexatious because the tribunal will not have considered any evidence nor will the purported respondent have formally been told that there is a tribunal being contemplated. The threshold for vexatiousness is considerably higher than that: it involves behaviour which consumes substantial amounts of time and money on purely frivolous grounds. If the respondent spends money on legal advice prior to being served with notice that an ET is actually going to happen then that is their prerogative, but not something that they can ever hope to recover whatever the outcome of the case.

There is a procedure by which an applicant can be barred from even attempting to being claims (beyond their case being vexatious, they can be deemed a vexatious litigant). Nothing in this case begins to scratch the surface of either.

It’s also worth pointing out that were one to be in the mood for litigation, accusing someone of being a vexatious litigant is, of course, potentially libellous.

The definition of ‘vexatious’ is ‘denoting an action or the bringer of an action that is brought without sufficient grounds for winning, purely to cause annoyance to the defendant’

Hardly merits a libel action…?

More to the point, there seems to be quite a strong consensus amongst the legally informed that the case does not have much hope of succeeding.

It must therefore have been brought either as an irritation, or as Peter Ould says to challenge Section 23, and force a change of teaching in the Church—as Etienne appears to think.

So either it is forcing the bishops hand, or it is causing them irritation. I say that simply as a deduction from the discussion here.

It is thus either vexatious, or an illegitimate way of forcing the issue. Either way, I am still surprised no-one who is pro-SSM is prepared to say that this is not the right way to go about things, even in a modest way.

Ian, a vexatious litigation is a suit “totally without merit.” Given the complex interplay between the NHS trust and the Church of England, the lack of clarity to the CofE’s own procedures, and the slapdash actions of the bishops, I see no reason to describe this suit in its way. In any case, that ruling is for a court to make.

As for negotiation, so far, the leading traditionalists have refused to even consider a “two integrities” model. If, in addition to that, lesbian and gay clergy must fear arbitrary “discipline,” how can any negotiations proceed? Negotiations presuppose the possibility of compromise. LGBT Anglicans have already made a major compromise in offering “two integrities”: until a realistic counter-offer is made, there can’t be any negotiation.

Bringing clarity and consistency to the church’s treatment of its LGBT clergy could only aid in conversations, which may at least get us to the point of negotiation.

Ian ”the strong consensus” as you have it is based on speculation as to the actual claim of the plaintiff.

Until we know the detail of the claim and it’s argument it is impossible to gain a consensus as to its possibilities. This case could not be viewed as vexatious as there are points of law in contention that may well be integral to argument but not being tested in the substance of the claim. There is much detail in the process, of which we are unaware that is more likely to be the basis of the claim. Tribunals do not test law, they test organisational implementation of it. This will not test the equality act or the marriage acts let alone church teaching, only what the players on the stage said and did in this particular case.

I do not feel it useful in any extent to paint this case as vexatious or as a planned campaign as it detracts from your original post. I have otherwise, appreciated it’s contribution to debate and my exchange of points with you.

If I am not prepared to say that it is not the right way to go about things, that is simply because I do not presume to make that judgement. It would not have been my personal choice were I in that situation and I fear the potential outcomes. It is however Canon Pemberton’s choice and I admire his courage in doing so not least for being prepared to suffer the condemnations and ordure that will ensue, and I shall support him in this choice.

Exactly, “vexatious litigation” refers to a pattern of behavior that abuses the civil justice system, usually to harass a defendant. It’s the civil law equivalent of a malicious prosecution.

For the accusation to have any weight, the person making it needs a thorough knowledge of the case, evidence, and, most importantly, motives and behavior of the plaintiff. A comment on a website certainly doesn’t qualify!

Calling this vexatious casts far more heat than light. I understand, Ian, if you don’t want to support Jeremy, but could you at least withdraw that claim? 🙂

The tribunal will establish whether the claim is vexacious or not. We cannot possibly have a firm legal opinion about that at present.
And no-one is trying to change church teaching through this process.
The tribunal may establish whether that church teaching should be allowed to impact on a secular position. And/or it may establish whether the right processes were followed.
If it ends up being a question of process, then all the church needs to do in a future case is to make sure it follows the correct process to get the same result.

Of course, I’d LIKE church teaching to change. But this tribunal is not going to do that.

So, some of the correspondents above think that Jeffery’s marriage ‘challenge’ was ‘planned’ and that he is a ‘well planned campaigner’. Is it just not possible that Jeffery and his partner decided that they wanted to be married, as the law allows, because they wanted to make a public commitment to each expressing ear long and deeply held love for each other? In no other walk of life would getting married generate such heat and such little light, and bring such opprobrium down on the heads of those entering into marriage and those who support them.

“[T]his is a mischievous and vexatious claim.” Really? There have been cases like this before? If not–if there is no controlling precedent–then you are assuming what you are trying to prove.

It “will unnecessarily bring bad publicity to all concerned.”

I don’t think the publicity for Jeremy Pemberton has been bad at all. In my view, this litigation redounds very much to his credit.

And if the publicity is bad for the Church of England, then instead of blaming the journalists, perhaps the Church of England should wonder why this is so?

It will “undermine any sense of respectful discussion.”

This cry is the last defense of those called to account before a neutral tribunal. “We could have worked this out” in the same old context — one in which those resisting change hold all the power, those seeking accountability are powerless, and the “respectful discussion” has been going on for decades, with little prospect of the situation improving.

If the Church of England really wants to discriminate against married people, then it should expect much more litigation in the future.

Of course the Church wants to ‘discriminate’ against married people, since the current teaching of the Church is that it does not recognise same-sex marriage as having the same moral status as other-sex marriage.

If this is always going to attract legal challenge, what you are saying is that the Church has no freedom to take a position which is different from the secular understanding of morality. I think that’s fairly extraordinary!

I think this is a completely manufactured panic.
On the one hand you’re saying that there is no basis to the claim and that it will be thrown out.
On the other you are scared that someone will force the church to change its theology about gay people.
Which is it?

And the tribunal is only concerned with the fact that a man was refused secular employment in an organisation that is not exempt from the equalities legislation.
If Jeremy wins, the outcome may be a clearer line about where the opt out ends.
Or it may be something about the due process that should have been applied by the bishops.

There is no indication, none whatsoever, that this tribunal can challenge the opt out the CoE has got.

Erika, ‘Which is it?’ I don’t know. I am not accusing anyone of anything; but I am trying to anticipate what the outcome might be, and what is the motivating force.

My observation, not least from the comments of people who know more about employment law than I now do, is that, given the claim is made to the wrong people, that it appears that it must either be done simply to gain publicity and be awkward, or as Peter says further up that it is part of a longer term plan to force the Church’s hand by means of equality law.

Is there a better explanation? I am not convinced ‘He wants justice’ is persuasive given what has happened and when.

One thing we do appear to agree on: if there was ever a hope of civilised conversation about the issue, this kind of action utterly destroys it. Jeremy has been part of a ‘listening group’ in this diocese; I am sure it can now never meet with him as a member again. How could it?

“My observation, not least from the comments of people who know more about employment law than I now do, is that, given the claim is made to the wrong people, that it appears that it must either be done simply to gain publicity and be awkward, or as Peter says further up that it is part of a longer term plan to force the Church’s hand by means of equality law.”

I’m not sure what you’re referring to, but the quotes you take from mine and Adrian’s comments don’t say that or, perhaps, we clarified them later on TA.

What we were both arguing was not that the case is vexations, frivolous or hopeless, or that it’s obviously aiming at the wrong respondent, but that that is the initial defence that the church will enter, and the ET will have to agree that the action is against the right people as part of its work. That’s fine: ETs have a lot of experience in that when dealing with agencies and outsource arrangements, and it’s meat and drink for TUPE cases. It’s for the tribunal, not the respondent, to decide if the case should be heard.

We were speculating as to the defences the church will enter, not what the ET will hold. That’s for the ET. Were I a betting man, I would be willing to bet at very short odds on their not dismissing it as vexatious, because the chances of it happening are approximately zero.

There is no chance that the church’s opt-out to employment law can be overturned via this route. Such an attempt would fail because courts cannot overturn primary legislation. Even if it was fought all the way to the Supreme Court, the most they could do would be to deem the legislation not compatible with the HRA and ask (not demand, ask) parliament to have another look. It’s pretty obvious that the CLC think they are living in the US mid-West where their donors are, and exist in a world in which the Supreme Court can overturn primary legislation on constitutional grounds. Let’s not make such a mistake here: primary legislation cannot be overturned in the UK by any court. The church have an opt out on discrimination law enshrined in primary legislation, and only parliament can alter that. No court case can.

So there is no chain of legal actions that results in “forc[ing] the Church’s hand by means of equality law.” This action will, at most, result in one NHS Trust not being able to shelter behind the church’s opt-out. That’s as far as it goes.

This is not, and I don’t think it’s ever been, about negotiation. The sole desire of the conservatives throughout this debate has been to preserve their stranglehold on power. Conversation helps them do this by forever moving the possibility of change into the future.

“Please, let us think about this!” really means “Please, hang on while we pretend to think about this, because if we take long enough you may get bored or discouraged and give up. Or better yet, go away!”

Pilling’s “facilitated conversations” are a cynical attempt to further postpone change. Everyone on the progressive side understands that now, which is why groups like Changing Attitude are hardening their position and refusing to talk any longer. All the talking that needs to be done has been done. Now is the time for action.

‘Pilling’s “facilitated conversations” are a cynical attempt to further postpone change’…if it were not for the fact that is was a mechanism proposed by a group who appeared to want the change, not to delay it.

Whoever proposed these facilitated conversations, conservatives have seized on the idea as a further roadblock to change. That’s why there can be no further talking. Conversations mean more delay and we’re not prepared to wait any longer.

The change in attitude we’re seeing from Changing Attitude is indicative that the time for negotiations is over. The next phase in this struggle will involve direct action rather than endless chat. Jeremy Pemberton’s is the first of a number of lawsuits that stand a good chance of defining legal boundaries in ways that will make it extremely difficult for the Church to continue to discriminate against the gay community.

Conservatives don’t seem to realize they’re facing an implacable opponent. We won’t rest until we’ve won the equality we believe all should be entitled to. If we don’t get it now, we’ll just keep on fighting until we do. For as long as it takes.

Ian, I accept that the shared conversations will be harder. Although I don’t quite understand why the actions of one person should have such an impact on a conversation thousands of people who make up the church are about to have. It’s up to everyone else how they respond individually.

But you still don’t answer my main point, which is that talk of this action possibly forcing a change change in the church’s policy on same sex relationships is completely mistaken.
The action is about employment in a secular organisation, and it may be about process.
It is not about theology nor about the opt-out from the equalities legislation.

We can stop panicking. The church can still do what it wants – internally. Although due process would be good.
And people can still have conversations.
Nothing has changed in that respect.

I think what has changed is conservative complacency about liberals. Etienne is right with the comment further down that we will absolutely not rest until we are treated as equal in every respect. The only question is how we that can happen while not pushing anyone out and making sure that everyone has a place in the church – bit like happened with women bishops.
Maybe the panic is because people are finally realising that?

“I think what has changed is conservative complacency about liberals.” Absolutely, Erika. However much they want it, conservatives must realize that it’s no longer possible to impose their beliefs on the rest of the church.

The best safeguard for conservatives would be to thrash out a “two integrities” compromise now, while they’re still in a position of strength, and before events spiral out of control.

For example: drop Issues … and its compulsory celibacy, cease punishment of lesbian and gay clergy who marry outside the church, and introduce blessings at the discretion of individual ministers; but keep the current marriage canon, and enshrine conscience protection for all clergy. The official church teaching wouldn’t be changed, but it wouldn’t be imposed on those who don’t share it.

That would take the pressure off, and allow a proper, open debate over marriage, and sexuality, and biblical authority.

No route will avoid problems. The question is, which set of problems should we choose?

As you know, my preference would be that the Church confirms its current, well founded position; that we draw a line under further dispute on this; and that we then turn to the pastoral questions in how we respond positively and pastorally to those who are formally outside the Church’s teaching.

Practically speaking, how can the church “draw a line” under its teaching on sexuality?

Gay people will continue to be born into churchgoing families, attend church, and feel a vocation to ordination. Most will be unwilling to suppress their sexuality for life, and will continue to press for change, alongside their friends, relatives, and society in general.

It’s not just a question of whether your position is right, but of whether it’s viable.

James, I enjoy the discussion…but sometimes I wish that you would listen a little more carefully! No-one is proposing that gay people ‘suppress their sexuality for life’. That’s not what the C of E teaches, and not what I am suggesting.

Of course, there will always be people who disagree–as on so many other issue. Is the Church simply then to change its position until no-one disagrees with it?!

If I can add a small precision about my position regarding the case in question, which I make only in order to disabuse Monsieur le Docteur ès Quoi Donc ? (theology, one assumes, but again, his Wikipedia page is strangely silent on the subject…) of certain erroneous notions he holds about that position, I really don’t think that a victory for Jeremy Pemberton will force a change in Anglican dogma.

What I think this case and others that will surely follow it may do is to severely curtail the Church of England’s ability to discriminate against LGBT people outside the walls of their nice, polite and deeply homophobic churches.

We know that English civil law allows marriage between two people of the same gender and we also know that English canon law forbids it. There’s a whole series of grey areas at the intersection of these two contradictory rules where precedence has yet to be established.

Where, when and under what circumstances does civil law trump canon law? Employment is one of these grey areas. Mr Pemberton’s case will help establish which rules apply in which cases and should therefore be welcomed by everyone as bringing clarity to a very unclear situation.

Of course it’s my hope that civil law will trump canon law in every situation where there is doubt. I hope the courts paint the Church into such a tight corner that it implodes with a dull, grey and muffled thump and something new and inclusive is born from the dust and ashes left behind. But I don’t think Mr Pemberton’s case will cause that to happen directly. I think it’s more likely that, as the Church is hemmed in on every side and its homophobic attack dogs start to turn on each other for want of other prey, the resulting fight to the death willl leave the way clear for moderate voices to triumph. The meek inheriting the earth, you might say…

Thanks to all for the interesting comments on the consequences of this. I still think there are three issues here:

1. It is absolutely clear that the Church is NOT the employer. So why has an ET been raised against them, if the aim is to address an employment issue? Why was it not raised against the potential employer themselves?

The best option for his success might be if the tribunal were to decide that the Equality Act 2010 is a defective implementation of the directive; that the Act needs to be reinterpreted to comply with the directive, introducing proportionality to the compliance and non-conflict prin­ciples; that the relevant employer is a public body; and that, in refusing to employ/grant PTO to a cleric in a same-sex marriage (though this had been permitted when his rela­­­tionship was not a marriage), the employer has acted dispropor­tion­ately, and so outside the law­ful exceptions of Schedule 9(2).

This holds out the possibility that the whole process of granting a licence could come under ECHR. Of course, Rob might be mistaken–but someone who is informed clearly thinks this is a possibility.

3. I am still intrigued at the lack of ‘rebuke’ on the question of pursuing the issue through the courts. CT also has an article about the Conversations, and comment from Pete Broadbent that they look likely to achieve little. I just wonder what the response would have been had ‘conservatives’ taken a case to court in the midst of discussion about women bishops. It would have been roundly condemned (I think on all sides) as an attempt at sabotage.

Picking up on the discussion of parliamentary sovereignty, English courts can strike down (or “disapply,” as they prefer) acts of parliament that conflict with EU law. (On some convoluted rationale, invented by them, natch, that Parliament gave them permission to do so when it joined the EEC.)

Thing is, the court in question was the Law Lords, now the UK Supreme Court, not an employment tribunal. I don’t see how an employment tribunal could possibly be competent to go around “disapplying” primary legislation. It isn’t even a court of record.

Disapplying laws is a question for a much higher court, to be litigated on different grounds. All the tribunal is looking at is the application of the existing law. At most, it might comment that a conflict (potentially) exists between the Equality Act and the EU directive.

Absolutely clear to you, maybe. If it’s as clear to the ET, then the ET1 form will be rejected out of hand, and everyone can go home. The articles in the Church Times discuss the uncertainty about employment status: what makes you think their uncertainty is wrong and your certainty is right?

I rather suspect it isn’t as clear as you’re making out. You might like to look at Ecclesiastical Offices (Terms of Service) Measure 2009 S.1(1)(g) and consider just how arm’s length the relationship between the church and a chaplain subject to a license actually is. That was amended subsequent to its passage, which shows how complex the whole situation is, to attempt to deal with this precise problem. The Ecclesiastical Offices (Terms of Service) Regulations 2009, as amended by The Ecclesiastical Offices (Terms of Service) (Amendment) (No.2) Regulations 2010, contain an explicit exclusion, S.3, for people who are employed by third parties. But it’s an open question as to whether a body can distance itself from being considered a form of employer by just saying that it isn’t. The question will be as to whether the CofE is exercising some form of control over the employee, and on the current position they are, as they are exercising a right of veto.

We’ll see what happens. But presumably JP’s barristers aren’t just in it for the lols. They must be reasonably confident that the ET1 won’t just be kicked straight back at them for failing to state a case. Given they are barristers, not a couple of likely lads hanging around the high street solicitor on work experience, they’d look like idiots if that happened, and barristers aren’t likely to want to look like idiots. He’s claiming discrimination, not unfair dismissal, and the definition of an employer (or, more accurately, the definition of who can be the respondent in an employment tribunal) is much more widely drawn.

I would look to whom would be declaring themselves to be the employer. Which payroll would he be placed on, and who would be maintaining the connected employers’ national insurance contributions.

I would also ask whether or not the Archbishop of York or the Acting Bishop of Southwell and Nottingham were consulted during the short-listing process or during the interview stages. If not, then I think that there is enough distance for them not to have to answer an employment tribunal – unless the employment tribunal wants to make it possible for people to nominate others into a position of being the employer.

I view the Church of England’s role is this to be much closer to that of a professional body, and it is up to those who want to hold a Bishop’s license to ensure that they meet the criteria – which was made abundantly clear in the House of Bishops’ statement in February.

Armchair legal analyses are always highly entertaining. If all it takes to predict a verdict is an ax to grind and a superficial Wikipedia-style knowledge of the law, one wonders why they pay barristers the big bucks.

I mean, surely if all it takes to work out the rights and wrongs of a case is an Internet account, a search engine and more time to waste than is good for one, we can all be judges. Real democratic justice in action. Or mob rule, as it’s more commonly known.

Personally I’m content to wait for the experts to do their job and then comment on how the verdict either advances or hinders my cause. To do more would be to claim legal knowledge far beyond anything I possess.

I await the outcome of this case with the greatest interest. And not just because of the legal precedent it may set in favor, or to the detriment, of my cause. I’m at least as interested to find out whether the judgment confirms that all you need to be the perfect moral arbiter is a a doctorate in whateverology, an unshakeable sense of entitlement and boundless confidence in your own abilities. I await the result with bated breath … !!!

Thank you Ian for a good post and you have spent time replying to those who are pro-same-sex marriage as you rightly identified. Unfortunately the pro-SSM replies have shown how anti-Christian in their actions they are willing to be.

Jeremy Pemberton hasn’t taken so many parts of the New Testament like 1 Corintians 6 to heart at all.

The reality is that many Christians will remember the anti-Christian nature of those who brought about same-sex marriage and will leave the CofE when it stops being a Church and stops being Christian.

Etienne September 11, 2014 at 4:00 pm wrote:

“The time for conversation is over.”

Etienne September 10, 2014 at 11:42 pm wrote:

“To see the Church punished in however small a way for centuries of vicious and unrelenting homophobic persecution would send a very important signal to society as a whole: nobody is above the law….”

Firstly, it is not unusual for such people to offer no evidence for the claim that the Church is homophobic. This is like Anita Aland on Radio 4 victimising the Church for the vagueries of ordinary people. She only asked people who were against same-sex marriage about their faith views, she never, ever asked people who were for SSM. So it is not unusual to find Etienne projecting homophobia onto others.

Radio 4 and TV praised Sir Richard Attenborough for having a good marriage but are stunned to find that traditional marriage is now excluded from all conversation. How can the same Radio4 praise Sir Richard Attenborough’s marriage and carry on excluding traditional marriage whilst promoting gay marriage other than sheer hypocrisy? Here in Wales traditional marriage, no matter how difficult, is being excluded from the conversation!

Bishop Alan, James Byron, Etienne and others talk about the CofE carrying on but when the Christians leave – but it won’t. The CofE will carry on dwindling and become the old worn-out fabric of society and nothing much to do with Christianity.

They don’t like Canon B30, they don’t like the 39 articles etc, but as soon as you destroy them you are also destroying the CofE.

I have taken time to try and find out what the Bible actually says about marriage but have been abused for even doing so. That is how un-Christian many are.

Clive, 1 Corintians 6 was written in light of a pagan legal system that persecuted Christians and proudly discriminated against non-citizens. To apply it to a system developed centuries later, and shaped by Christianity, is absurd. If there ever was an example of the pitfalls of universalizing a specific, time-bound command, it’s this.

As it happens, I agree with your interpretation of the Bible, but disagree with how it ought to be applied. Others disagree with the interpretation. If people go around meeting dissent with accusations of apostasy, then wherever the problem lies, it isn’t with the dissenters!

Alastair, in some ways I agree with you. But there must also be a point where we say ‘You are entitled to that view, but it is a view which is not recognisably Christian my most definitions of the word.’

Otherwise, we baptise all possible views as ‘Christian’, which then evacuates the term of any meaning.

I do agree with you on that – some attitudes and actions are clearly not compatible with Christianity, however understood and interpreted. However, statements such as “Unfortunately the pro-SSM replies have shown how anti-Christian in their actions they are willing to be.” just have no founding.

My post also only said that such name-calling was unhelpful. I suspect that people who use the term “un-Christian” or “anti-Christian” genuinely do believe that that sentiment is justified. But when people on both sides of this issue feel they can use (and indeed have used) these terms about those on the other side we’re reaching spiritual bankruptcy aren’t we?

There is little point in replying when the very first thing James Byron does is attempt to dismiss the Bible.
James Byron September 14, 2014 at 5:38 pm wrote that “Clive, 1 Corintians 6 was written in light of a pagan legal system that persecuted Christians and proudly discriminated against non-citizens….” This is, of course, the same justice system that Lord Justice Munn now firmly tells us is very nonb-Christian and owes nothing to Christianity.

“Radio 4 and TV praised Sir Richard Attenborough for having a good marriage but are stunned to find that traditional marriage is now excluded from all conversation.”

I sometimes think that the more conservative Christians won’t be happy until we open up a few gladiatorial rings and start feeding evangelicals to lions. Only then will they get the sense of persecution that they want.

Tens of millions of people in this country are in opposite-sex marriages. The idea that they are excluded from the general discourse is a fantasy of a tiny minority of Christians who want to pretend that being members of the absolutely dominant cultural and philosophical structure of post-Dark Ages western Europe makes them a dangerously persecuted minority. You’re not going to get the persecution that you hanker after, and being told to behave decently towards homosexuals is not, I’m afraid, any sort of persecution.

IO, I sympathise with your response to the claims of persecution which Christians in this country often make too easily. But there is a point to be made here too.

There is a fairly consistent bias in the media against Christian orthodoxy and (on this issue) on the gay perspective. Popular entertainment reflects this—it is not uncommon for the most popular tv quizzes to include 20-30% of panellists who are gay. I am a regular watcher of QI, and it is far from uncommon for Stephen Fry to make some comment about how absurd it is to believe in God, and what a horrible God he must be if he were real.

Recently, on a BBC East Midlands programme, there was an article about ex-addicts involved in an overseas relief project. But the reporting avoided mentioned at any point that this had all been set up by a local Baptist church.

I agree that these are small things in themselves. But together they amount to a systematic bias which makes Christians invisible and the gay agenda prominent. It is hard to listen to Radio 4 for more than a couple of hours, it seems, before someone is making the case for ‘gay equality.’

Ian, I realize it was unintentional on your part, but guys like Scott Lively use “gay agenda” as a code-word for a conspiracy on the part of LGBT people to dominate the West. As the connotation is so negative, the term casts far more heat than light.

To address your point, even if lesbian, gay and bisexual people are overrepresented in the London-based media, I don’t believe there’s any conscious agenda beyond “we want to be treated equally,” which is surely something that most everyone desires for themselves.

It surely doesn’t matter what happens at the initial Employment Tribunal, as either side will almost certainly appeal.

No, what matters is whether the Equality Act has properly converted the relevant European regulations relating to equality into British law. I suspect they haven’t, and fervently hope that British law will be amended to remove the exception currently granted to faith groups.

For information, I believe that everyone should be treated equally under the law (with no exceptions); for me that is a key tenet of justice.

Ian is very much better at responding generously to nonsense than I am. I remain impressed, but “Interested Observer” starts by changing the subject to same-sex marriage by saying that persecution is sought by evangelicals. Actually EQUALITY is wanted. I asked for traditional marriage to be included in the conversation for the sole purpose of EQUALITY. The same conversation that tries to discuss marriage as a whole must include traditional marriage to be equal, otherwise it is not equal as it only covers SSM. That is how un-equal “Interested Observer” is being. It is the same inequality that “Graham Smith” talks about. Equality, to “Graham Smith” is just an empty word. The actual science, when studied carefully, says that same-sex marriage is different to traditional marriage. The actual law, when studied carefully, puts different conditions on marriage between a man and a woman than same-sex marriages. We haven’t even got on to the theology and SSM is already different, yet “Graham Smith” really wants to use the meaningless word “equality”.

The irony of the positions is that Christians are to be excluded from the same-sex marriage conversations. Linda Woodhead rightly puts committed Christians at between 10% and 20% of the CofE so if they leave, having found that the SSM discussions excluded them, then there is no longer the C in CofE even if 80%+ of its membership is still present.

Hannah and Elkanah were in our reading a couple of weeks ago. Like Abraham & Sarah they are one of a few infertile couples in the Bible. Yet the potential for procreation still exists. A woman cannot go before a Judge with the new law and ask to marry her brother’s son because the potential for procreation still exists and the revised new law prevents it. Claiming infertility doesn’t work with the Judge. The potential for procreation still exists in the new Law which continues to cover traditional marriage. The infertility argument and validity of marriage simply doesn’t work under the new law. Many make the argument but it falls flat on its face when studied.

Equality is not being offered to Christians in the conversations but already Etienne wants to dispense with them anyway. This is where Canon Jeremy Pemberton is acting contrary to the New Testament with a view to forcing SSM onto the CofE thereby leaving Christians out of the conversation.

“Linda Woodhead rightly puts committed Christians at between 10% and 20% of the CofE so if they leave, having found that the SSM discussions excluded them, ”

Is same-sex marriage really the only thing that “committed Christians” (i assume that’s a euphemism for “Christians that agree with Clive”) care about? That so long as the CofE continues to discriminate they’ll remain, but the moment it doesn’t they’re off? Many would argue the church would be better off without you, then. Similar threats were made over the ordination of women, and I’m sure that we haven’t heard the last of them being re-made over women bishops. I always regard a good way to set my moral compass as “what do the Quakers think?” but, clearly, you think them beyond the pale.

The rest of your argument is bizarre. What are you trying to claim is unequal? Laws on incest are not connected to fertility. It is illegal to marry when the consummation of that marriage would be illegal. The Sexual Offences Act 2003 places the same restrictions on same-sex and opposite-sex incest. Hence it is illegal to either marry or have sex with your brother whether you are male or female. There are probably, if you get out a theorem prover and work through them, some situations where it is legal for A and B to have sex but not marry, and possibly vice versa, and that is what case law exists to resolve. But as a general rule, most of the obvious cases are covered equivalently in the laws on incest and the laws on marriage. Are you trying to claim that the laws on incest don’t apply to same-sex couples, or that SSM is possible between relatives who would not be permitted an opposite sex marriage, mutatis mutandis? You’re flatly wrong.

There is no great cry from the public to repeal the laws on incest, mostly because they are a useful bulwark against abusive and coercive relationships, and in the cases where the relationship is not coercive prosecutions are normally not deemed in the public interest. So I entirely fail to see what argument you are making: the situations are no different for opposite and same-sex marriage.

To be honest all the media attention is on Canon Pemberton and his well orchestrated media campagin and on social media. This would suggest that the motives behind Canon Pembetons legal challenge is to make the church change it’s stance on marraige and the authroity of the Bishop for his own ends and those who also think they above Canon Law. not once has Canon Pemberton spoke about the bible the gospel of the vocation of a priest only how hurt he is about the way he has been treated, So for me it seems that there are some serious questions about Canon Pemberton’s motives which do not reflect the ministry to which he is called to. For me that is a big question are we doing a job or a vocation, if it is a job then perhaps we are not doing what God called us to.

Don’t forget that what is reported by the media is just what the media wishes to report. So, if indeed the mainstream media is so viciously anti all things Christian (as several people upthread have suggested), then why on earth would they report anything that Canon Pemberton might have said about the gospel, the bible, or his vocation to the priesthood. Just because it’s not been reported, doesn’t mean it hasn’t been said…

Let us try to engage in the conversation which is about marriage and Canon Jeremy Pemberton.

By contrast Alastair Newman September 17, 2014 at 10:10 am tried to quote me by saying “ “Unfortunately the pro-SSM replies have shown how anti-Christian in their actions they are willing to be.” just have no founding.” but failed to quote the piece taken from Etienne September 11, 2014 at 4:00 pm wrote, which was only one amongst many, that gave the foundation that Alastair was pretending to search for.

Then Interested Observer September 16, 2014 at 4:48 pm tried to respond to Ian’s comment about presenters (amongst other points) by saying that “100% of the presenters of the Great British Bake-Off are lesbians. What of it?”. Unfortunately we have got quite used to the level of exaggeration from IO. The wikipedia entry for Mel says: “[Mel] Giedroyc is married to Ben Morris, a television director and teacher at LAMDA. They have two children: Florence, born May 2002 and Vita, born February 2004, and live in London.” which is quite inconvenient for IO’s claim.

Interested Observer also reported on September 16, 2014 at 4:37 pm that “Is same-sex marriage really the only thing that “committed Christians” (i assume that’s a euphemism for “Christians that agree with Clive”) care about?”
I quoted Linda Woodhead precisely because I don’t matter. Prof Linda is conforming that I am the minority. It is very sad that IO drifts into such a childish euphamisms. The issue is actually the accuracy of what Jesus said in the New Testament, it is not same sex marriage of itself. Unlike previous subjects Jesus and the New Testament comments directly on marriage. Hence I referred to Canon B30. So IO’s euphamism is incorrect and overlooks what the debate is really about.

Bob Stephens’ comment registered September 16, 2014 at 12:46 pm, was a good one and worth reading. Alastair’s reply is also correct in that the Media reports only what the Media wants to. The Media has its own agenda.

Clive, I just don’t see how you reach the conclusion of “Unfortunately the pro-SSM replies have shown how anti-Christian in their actions they are willing to be.”

from this…

“The time for conversation is over.

This is not, and I don’t think it’s ever been, about negotiation. The sole desire of the conservatives throughout this debate has been to preserve their stranglehold on power. Conversation helps them do this by forever moving the possibility of change into the future.

“Please, let us think about this!” really means “Please, hang on while we pretend to think about this, because if we take long enough you may get bored or discouraged and give up. Or better yet, go away!”

Pilling’s “facilitated conversations” are a cynical attempt to further postpone change. Everyone on the progressive side understands that now, which is why groups like Changing Attitude are hardening their position and refusing to talk any longer. All the talking that needs to be done has been done. Now is the time for action.”

Whether you agree with Etienne’s view or not (you clearly don’t!), I’m not sure how you come to the conclusion that the *actions* they are willing to take are anti-Christian. Etienne says it is the time for action, but doesn’t say what action is going to be taken. The only other thing in the post which implies action is refusing to talk about something. Are either of those things anti-Christian? If Conservative Evangelicals, say, propose action or refuse to talk about something is that also anti-Christian by extension?

Clearly the conversation has come to an end. Alastair’s last reply is suitably self-contradictory. We have arrived at the point where Alastair, Etienne and others don’t want the conversations, they want to force same-sex marriage on the Church regardless of what the Bible says. Equality clearly doesn’t actually mean equality so I don’t even know where we go with that. You try for genuine equality in the conversations but equality is refused and so are the conversations themselves. Many people have simply shown how muddled up the pro-SSM answers actually are. There is no further point in this conversation.

“Following a preliminary hearing held on 30th October 2014, the Employment Tribunal case between the Revd Canon Jeremy Pemberton (Claimant), the Right Revd Richard Inwood, the Acting Bishop of Southwell & Nottingham (1st Respondent) and the Most Revd Dr John Sentamu, the Archbishop of York (2nd Respondent) will be proceeding to a full hearing and has been listed for June 2015. Neither Jeremy Pemberton nor his husband, Laurence Cunnington, will be making any comments on the case at this stage.”

I understand that the process itself is routine. The significance to the readers of your blog may be that the case has been accepted by the Employment Tribunal at all. This means that, self-evidently, (a) the Employment Tribunal appears to have jurisdiction in this matter and (b) there is apparently sufficient merit in the claim for it to proceed to the next stage i.e. it has not been ‘thrown out’.

I am sure you will appreciate that I am unable to say anything further than these generalities.